Manipur High Court
State Of Manipur; & Anr vs Luwangthem Jilla Singh; & Anr on 3 September, 2024
KABORAMBA Digitally
KABORAMBAM
signed by
M SANDEEP SANDEEP SINGH
Date: 2024.09.05
SINGH 18:36:58 +05'30'
Item Nos. 40, 41, 42, 43, 45 & 46
IN THE HIGH COURT OF MANIPUR
AT IMPHAL
W.A. No. 32 of 2024
With
MC (W.A.) No. 65 of 2024
State of Manipur; & Anr.
Appellants/Applicants
Vs.
Luwangthem Jilla Singh; & Anr.
Respondents
With
W.A. No. 33 of 2024
With
MC (W.A.) No. 66 of 2024
State of Manipur; & Ors.
Appellants/Applicants
Vs.
Luwangthem Jilla Singh; & Ors.
Respondents
With
W.A. No. 34 of 2024
With
MC (W.A.) No. 67 of 2024
State of Manipur; & Anr.
Appellants/applicants
Vs.
Luwangthem Jilla Singh; & Anr.
Respondents
BEFORE
HON'BLE THE CHIEF JUSTICE MR. SIDDHARTH MRIDUL
HON'BLE MRS. JUSTICE GOLMEI GAIPHULSHILLU KABUI
For the appellants :: Mr. Th. Vashum, Government Advocate
For the respondents :: Mr. N. Ibotombi, Sr. Advocate
Date of Order :: 03.09.2024
W.A. Nos. 32, 33 & 34 of 2024
With MC (W.A.) Nos. 65, 66 & 67 of 2024 Page 1
JUDGMENT & ORDER (ORAL)
Siddharth Mridul, C.J.:
[1] Mr. Th. Vashum, learned Government Advocate, appears on
behalf of the appellants/applicants; and Mr. N. Ibotombi, learned senior
counsel, appears on behalf of the respondents.
[2] The connected writ appeals assail the common impugned
judgment and order dated 04.10.2023 passed by the learned Single Judge of
this Court in the connected writ petitions, viz., W.P. (C) No. 919 of 2021, W.P.
(C) No. 45 of 2022 and W.P. (C) No. 130 of 2022; thereby directing the State
of Manipur through the Commissioner of Education School, as follows:
"(a) The offending rider made by the DPC in paragraph 13 of the
proceeding of its meeting held on 25-02-2021 as well as the
impugned cancellation order dated 14-12-2021, insofar as the
petitioners are concerned, are hereby quashed and set aside;
(b) The respondents No. 1 and 2 are directed to appoint the
petitioners on promotion to the post of Principal notionally w.e.f. any
date between 25-02-2021 and 28-02-2021 and actual financial
benefits in terms of pension and other retirement benefits should be
given to them w.e.f. the date of their promotion; and
(c) The whole process for giving such benefits should be
completed within a period of two months from the date of receipt of
a certified copy of this order."
W.A. Nos. 32, 33 & 34 of 2024
With MC (W.A.) Nos. 65, 66 & 67 of 2024 Page 2
[3] The facts briefly encapsulated as are necessary for the
adjudication of these connected appeals are that:-
(i) The original petitioners were initially appointed as
Lecturers on regular basis in the Government Higher
Secondary Schools, Education Department, Government
of Manipur.
(ii) After having served about thirty years as Lecturers in the
said post, they were promoted to the post of Vice-
Principal of Higher Secondary School on regular basis by
way of an order dated 30.10.2018.
(iii) Since the post of Vice-Principal is the feeder post under
the Recruitment Rule for appointment to the post of
Principal, the State Government, in terms of the DPC held
on 25.02.2021, recommended the original petitioners for
promotion to the post of Principal.
(iv) It is an admitted case that in view of their stand that the
original petitioners' appointment to the post of Principal
required sanction and consultation from the Manipur
Public Service Commission (MPSC), the files were first
sent to the MPSC for purported consultation on
26.02.2021.
W.A. Nos. 32, 33 & 34 of 2024
With MC (W.A.) Nos. 65, 66 & 67 of 2024 Page 3
(v) However, the MPSC returned the same on the ground that
the Commission was non-functional due to a vacancy in
the post of Chairperson since 20.11.2020.
(vi) Subsequently, upon MPSC becoming functional, the
appellants resubmitted the proposal seeking the formers'
concurrence to the said recommendation made by the
DPC held on 25.02.2021 vide letter dated 26.06.2021.
(vii) However, on this occasion, the MPSC returned the same
with the observation that the proposal was beyond the
scope of the MPSC.
(viii) In the meantime, the original petitioners retired from
service with effect from 28.02.2021 on attaining the age
of superannuation.
(ix) Being aggrieved by the act of omission on the part of the
official respondents in issuing the appointment orders, in
pursuance to the recommendation of the DPC, the original
petitioners were constrained to file the writ petitions out
of which the common impugned judgment and order
assailed in the present appeals arise.
[4] As aforesaid, vide the said common order dated 04.10.2023, the
learned Single Judge allowed the writ petitions.
W.A. Nos. 32, 33 & 34 of 2024
With MC (W.A.) Nos. 65, 66 & 67 of 2024 Page 4
[5] In other words, in sum and substance, the appellants were
directed to appoint the original petitioners on promotion to the post of
Principal notionally with effect from any date between 25.02.2021 and
28.02.2021 and grant them actual financial benefits, in terms of pension and
other retirement benefits with effect from the date of their notional
promotion.
[6] The solitary submission made by Mr. Th. Vashum, learned
Government Advocate, appearing on behalf of the appellants, is that the
learned Single Judge fell into error in so directing since promotion to a post
can only take effect prospectively and not retrospectively.
[7] Per contra, Mr. N. Ibotombi, learned senior counsel appearing
on behalf of the original petitioners, would urge that they were denied
promotion along with its consequential benefits for no fault of theirs. The
appellants fell into error in transmitting the said recommendation dated
25.02.2021 of the DPC to the MPSC, inasmuch as, vide notification dated
01.02.2021, the appellants were at liberty to exempt consultation with the
MPSC with regard to appointment by promotion in the Offices/Departments
under the Government of Manipur during the period when the MPSC was not
in existence or duly constituted.
[8] We find ourselves in complete agreement with the submission
canvassed on behalf of the original petitioners.
W.A. Nos. 32, 33 & 34 of 2024
With MC (W.A.) Nos. 65, 66 & 67 of 2024 Page 5
[9] In this behalf, it would be profitable to extract the relevant
paragraphs of the judgment and order dated 04.10.2023 impugned before us
in the present appeals.
"[16] I have heard the submissions advanced by the learned counsel
appearing for the parties at length and also carefully examined the
materials available on record. In the present case, the writ petitioners
have been denied promotion to the post of Principal of Government
Higher Secondary Schools even though they have been recommended
for such promotion only on account of the offending rider made by
the DPC in paragraph 13 of the proceeding of its meeting held on 25-
02-2021. It is undisputedly on record that at the time of holding the
said DPC meeting on 25-02-2021, the MPSC remained non-functional.
It is also undisputed that in order to facilitate the Government with
regard to appointment by promotion to Class-I and Class-II post, the
State Government issued a Notification dated 01-02-2021 according
sanction to the exemption from consultation with the MPSC in the
matter of appointment by promotion in the Offices/ Departments
under the Government of Manipur during the period till the MPSC
become functional. In the said notification, the composition of the
Class-I and Class-II DPC was also notified. In view of the said
notification, this court is of the considered view that there was no
requirement for consulting the MPSC or obtaining its concurrence in
connection with the promotion of the Vice-Principal to the post of
Principal of Government Higher Secondary Schools since consultation
with and obtaining concurrence of the MPSC had already been
exempted by the State Government. The offending rider made by the
DPC was un-warranted and absolutely un-necessary, in fact, there
was no reason or justification for making such an offending rider in
the proceeding of the said DPC. In the face of such factual position,
this court is of the considered view that the DPC made the said
W.A. Nos. 32, 33 & 34 of 2024
With MC (W.A.) Nos. 65, 66 & 67 of 2024 Page 6
offending rider whimsically, capriciously, arbitrarily and without any
application of mind thereby depriving the valuable rights of the
petitioners for their promotion to the post of Principal before their
retirement from service. Accordingly, such offending rider cannot
withstand the test of law and the same deserves to be quash and set
aside.
[17] With regard to the challenge being made to the proceeding of
the DPC meeting held on 18-12-2021 and the appointment order
dated 28-12-2021 appointing twenty nine Vice Principal to the posts
of Principal, this court is of the considered view that there is no point
in interfering with the recommendation made by the said DPC and the
appointment order issued on the basis of such recommendation for
the simple reason that the petitioners have already retired from
service on attaining the age of superannuation w.e.f. 28-02-2021 and
they will gain nothing from quashing the said DPC proceeding and the
impugned appointment order. Since the said DPC meeting was held
after retirement of the petitioners to fill up the resultant vacancies
and even if the petitioners are appointed on promotion to the posts
of Principal before the date of their retirement from service, no
purpose will be served by interfering with the said recommendation
made by the DPC and the said appointment order and no prejudice
will be caused to the petitioners by refusing to interfere with the
same.
[18] The main controversy in the present case is whether the
petitioners can be given promotion retrospectively before the date of
their retirement from service. The stand of the State Government is
that in the consolidated guidelines for promotion issued by the
Department of Personnel & Administrative Reforms, Government of
Manipur under the Office Memorandum dated 15-05-2014, it is laid
down at para 5.11 that promotion will have only prospective effect
even in case where the vacancies relate to earlier years. Accordingly,
the petitioners cannot be given promotion retrospectively before the
date of their retirement from service.
W.A. Nos. 32, 33 & 34 of 2024
With MC (W.A.) Nos. 65, 66 & 67 of 2024 Page 7
It will be relevant to mention here that in paragraph 3 of the
said Office Memorandum dated 15-05-2014, it is also laid down that
DPC should be convened on regular annual intervals to draw panels
which could be utilized for making promotion against the vacancies
occurring during the course of a year and that the DPC may be
convened every year if necessary on a fixed date in the month of
January or April and that holding of DPC meetings need not be
delayed or postponed on the ground that recruitment rules for a post
are being revised/ amended.
[19] In the present case, there was gross delay on the part of the
State authorities in holding DPC meetings for considering the case of
the petitioners and other eligible candidates for their promotion to the
posts of Principal despite availability of a large number of vacancies
and eligible candidates. Moreover, because of the offending and
malicious rider made by the DPC at paragraph 13 of its proceeding,
directing the Administrative Department to issue appointment orders
after obtaining the concurrence of the MPSC, the petitioners have
been deprived of their valuable right for their promotion to the posts
of Principal before their retirement from service, even though they
have been recommended for such promotion. In such a situation, this
court is of the considered view that the petitioners cannot be made
to suffer owing to such arbitrary, unreasonable and malicious act
committed by the DPC and for no fault on their part. It is also
undisputed that if the DPC did not put the offending rider while
recommending the case of the petitioners and other candidates for
their promotion to the posts of Principal, the petitioners could have
been given promotion before the date of their retirement from
service.
[20] This court must keep in mind the constitutional obligation of
the State Government and State Government is to act as a model
employer, which is consistent with its role in a Welfare State. It is an
accepted legal position that the right of the eligible employees to be
considered for promotion is virtually a part of their Fundamental Right
W.A. Nos. 32, 33 & 34 of 2024
With MC (W.A.) Nos. 65, 66 & 67 of 2024 Page 8
guaranteed under Article 16 of the Constitution and the guarantee of
a fair consideration in matters of promotion under Article 16 virtually
flows from guarantee of equality under Article 14 of the Constitution.
It has not been disputed by the respondents that in respect of
promotion to the post of Under Secretary, Manipur Secretariat Service
during the same period when the MPSC remained non-functional, no
consultation was made with the MPSC or obtain its concurrence
before issuing the appointment order because of the exemption
sanctioned by the Government from such consultation as notified
under the Notification dated 01-02-2021.
In view of the above, this court find force in the submission
made on behalf of the petitioners that the petitioners have not been
treated equally by the authorities in the matter of their promotion. It
is, therefore, clear that the valuable right of the petitioners for their
promotion to the posts of Principal had been denied or defeated by
the unreasonable, arbitrary and malicious act of the DPC.
This court have also carefully perused the case law cited by
the learned GA and this court is of the considered view that the
principle laid down by the Hon'ble Apex Court in the said case is not
applicable in the present case as the facts are totally different. In the
case of "Government of West Bengal & ors. Vs. Dr. Amal
Satpathi" reported in 2023 SCC online Cal. 489, which is
somewhat similar to the present case, a Division Bench of the Hon'ble
High Court of Calcutta concurred with the view taken by the Tribunal
that even if a Government servant could not be granted benefit of
retrospective promotion, he should be given financial benefits of the
promotional post notionally on the date of his retirement and the
actual financial benefits in terms of pension and other retirement
benefits.
[21] Taking into consideration the peculiar facts and circumstances
of the present case and keeping in view that the petitioners have been
denied their valuable right to get promotion to the posts of Principal
W.A. Nos. 32, 33 & 34 of 2024
With MC (W.A.) Nos. 65, 66 & 67 of 2024 Page 9
before the date of their retirement from service by the arbitrary,
unreasonable and malicious act of the DPC, this court is of the
considered view that it will be in the interest of justice to dispose of
the present writ petitions."
[10] In our considered view, the conclusion arrived at by the learned
Single Judge is impeccable and unimpeachable and does not warrant any
interference in the present appeals, since the same cannot be characterized
to be perverse or contrary to the law or material on the record.
[11] We accordingly dismiss the present appeals as being devoid of
merit.
[12] The appellants shall comply with the directions issued by the
learned Single Judge forthwith and preferably within a period of eight weeks
from today.
JUDGE CHIEF JUSTICE
Sandeep
W.A. Nos. 32, 33 & 34 of 2024
With MC (W.A.) Nos. 65, 66 & 67 of 2024 Page 10
